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and those delivered (o), within the meaning of the rule laid S. 11 (1) (c). down in Kennedy v. Panama Mail Co. (p). See notes to s. 54, post.

goods.

Secondly, with regard to sales of specific goods. "If a specific (2) Sale of thing has been sold with a warranty of its quality, under such specific circumstances that the property passes by the sale, the vendee having been thus benefited by the partial execution of the contract, and become the proprietor of the thing sold, cannot treat the failure of the warranty as a condition broken (unless there is a special stipulation to that effect in the contract (q)), but must have recourse to an action for damages (r) in respect of the breach of warranty" (s).

"Where the property in goods has passed to the buyer unconditionally, the law gives him no right to rescind the contract in the absence of an express stipulation to that effect, and the property therefore remaining in him he is bound to pay the price, even if he reject the goods which still remain his. His proper remedy is, therefore, to receive the goods, and to exercise the rights explained [in s. 53]. . . . The cases in which it has been held that, on the sale of a specific chattel, the buyer's remedy is confined to a cross-action, or to a defence by way of reduction of the price, are all cases of the bargain and sale of a special chattel unconditionally, when, consequently, the property had become vested in the buyer" (t).

A similar statement will be found in Street v. Blay (u).

ILLUSTRATIONS.

1. A. agrees to sell to B. by sample a number of bags of rice at a price per pound. B. examines the bulk and finds it inferior to sample, and afterwards attempts to sell it. B., having accepted the goods, must pay for them (but may sue A. for breach of warranty that the goods should be according to sample). Parker v. Palmer (1821), 4 B. & A. 387 (x).

2. The facts being otherwise as in Illustration 1, ante, page 72, B. accepts part of the wool. B. must pay the price, but may sue A. for breach of warranty, that the names of the vessels should be declared, and that the wool should be shipped with all dispatch. Per cur. in Graves v. Legg (1854), 9 Ex. 709.

3. A. agrees to sell to B. fifteen sacks of flour of a particular quality. B. pays the price. B., on delivery, uses half a sack, and

(0) Gompertz v. Bartlett (1853), 2 E. & B. 849.

(p) (1867), L. R. 2 Q. B. 580, 587.

(2) See Bannerman v. White (1861), 10 C. B. N. S. 844.

(r) See on this, s. 53 (1).

(s) Per cur. in Behn v. Burness
(1862), 3 B. & S. at p. 755.
(t) Benj. pp. 934, 936.

(u) (1831), 2 B. & Ad. 456, 462.
(x) See also Chapman v. Morton
(1843), 11 M. & W. 534.

S. 11 (1) (c). then complains of the quality, and then uses two more.

S. 11 (2).

S. 11 (3).

B. cannot repudiate the contract and recover the price paid. Harnor v. Groves (1855), 15 C. B. 667.

4. A. agrees to sell to B. cinq foin seed warranted to be good new growing seed. After delivery the seed is examined by an expert, and shown not to be good growing seed; but B. sows part and sells the residue. The seed proves wholly unproductive. B., though he cannot repudiate the contract in toto, may treat the breach as a breach of warranty, i. e., show, as an answer to A.'s action for the price, that the seed was wholly worthless. Poulton v. Lattimore (1829), 9 B. & C.

259.

5. A. sells to B. a specific horse for 907. (which B. pays), and warrants him sound. The horse is unsound. B. cannot return the horse and recover from A. the 901. Gompertz v. Denton (1832), 1 C. & M. 207.

6. A. sells B. a specific horse for 431. warranted sound. The horse is unsound. B. cannot return him to A., but may, in an action by A. for the price, give evidence of unsoundness in reduction of the price on the ground of a breach of warranty. Street v. Blay (1831), 2 B. & Ad. 456.

7. A. agrees to sell B. by sample a quantity of hops at a price to depend on weight, and it is expressly stated by B. that he would not contract if sulphur had been used in the cultivation of them. In fact, sulphur had been used. The goods otherwise correspond with the sample on delivery, and are weighed and their price ascertained. B. accepts the hops. B. is not bound to pay for them, as there was an express condition that the contract should be null and void if sulphur was used. Bannerman v. White (1861), 10 C. B. N. S. 844 (y).

(2.) In Scotland, failure by the seller to perform any material part of a contract of sale is a breach of contract, which entitles the buyer either within a reasonable time after delivery to reject the goods and treat the contract as repudiated, or to retain the goods and treat the failure to perform such material part as a breach which may give rise to a claim for compensation or damages.

This sub-section re-enacts the 19 & 20 Vict. c. 60, s. 5 (the Mercantile Law Amendment (Scotland) Act, 1856), which is repealed by this Act. (See s. 60, and schedule of repealed enactments.)

of

(3.) Nothing in this section shall affect the case any condition or warranty, fulfilment of which is excused by law by reason of impossibility or otherwise.

By reason of impossibility or otherwise.-This sub-section

(y) This case may also be treated as one of an essential misrepresentation of fact excluding consent: see s. 61 (2).

excepts from the operation of the preceding two sub-sections conditions and warranties the performance whereof is by law excused by reason of—

(1.) Impossibility:

(2.) Other reasons.

S. 11 (3).

With regard to (1), antecedent and subsequent impossibility (1) Impossiin fact, by reason of the perishing of specific goods, is dealt with bility. in sects. 6 and 7. See the question of impossibility discussed by Prof. Pollock (z) and Mr. Benjamin (a). Under the same head may fall impossibility caused by events expressly or impliedly provided for in the contract as grounds of excuse, i. e., as forms of discharge, like the "excepted risks" of charterparties (b). With regard to (2), excuse admitted by law. cases of

(1.) Illegality:

which deals with other grounds of (2) Other Under this head would seem to fall grounds of

(2.) Implied waiver.

With regard to illegality, see Prof. Pollock (c) and Mr. Benjamin (d).

excuse.

As regards waiver, express waiver is dealt with in clause (a), Waiver ante, p. 69; and perhaps the term "waiver" there employed (implied). may also include implied waiver. But it is convenient, and perhaps more logical, to consider such cases under the present sub-section, which speaks of legal excuses for non-performance. On the subject of implied waiver Mr. Benjamin says (e) :— "The necessity for performing a condition precedent may be waived by the party in whose favour it is stipulated. . . by the implication resulting from his acts or conduct. This waiver is implied in all cases in which the party entitled to exact performance either hinders or impedes the other party in fulfilling the condition, or incapacitates himself from performing his own promise, or absolutely refuses performance, so as to render it. idle or useless for the other to fulfil the condition . . . If a man offer to perform a condition precedent in favour of another, and the latter refuse to accept the performance, or hinder or prevent it, this is a waiver, and the latter's liability becomes fixed and absolute. As long ago as 1787, Ashurst, J., in delivering the opinion of the King's Bench, in Hotham v. East India Co. (f),

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S. 11 (3).

said, that it was evident from common sense, and therefore
needed no authority to prove it, that if the performance of a
condition precedent by the plaintiff had been rendered im-
possible by the neglect or default of the defendant, "it is equal
to performance (g). On the same principle, a positive absolute
refusal by one party to carry out the contract, or his conduct in
incapacitating himself from performing his promise, is in itself
a complete breach of contract on his part, and dispenses the
other party from the useless formality of tendering performance
of the condition precedent. . . . But a mere assertion that the
party will be unable or will refuse to perform his contract, is not
sufficient it must be a distinct and unequivocal refusal to per-
form the promise (h), and must be treated and acted on as such
by the party to whom the promise was made; for if he after-
wards continue to urge or demand compliance with the contract,
it is plain he does not understand it to be at an end” (i).

There are, therefore, two grounds of implied waiver, viz. :—
(1.) Prevention by the other party of the performance of the
condition:

(2.) Dispensation with its performance, as when the party
entitled to performance of the condition renounces, or
makes himself unable to perform, his own part of the

contract.

These are instances of the general rule applicable to contracts generally.

ILLUSTRATIONS.

1. B. agrees to buy of A. a digging machine, provided it fulfilled the condition of being capable of excavating a certain quantity of clay in a given time upon a properly opened-up face in a railway cutting. B. is to open up the face, but fails to do so, though repeatedly requested by A. B. must pay for the machine without the test, as he has impliedly waived the performance by A. of the condition. Mackay v. Dick (1881), 6 Ap. Ca. 251.

2. A. agrees to make and sell to B. 3,900 tons of railway chairs deliverable at certain places at various times, and to be paid for one month after delivery. A. delivers, and B. accepts, 1,787 chairs, but as to the residue, B. tells A. that he will not want any more. A. is ready and willing to manufacture and deliver the balance of the chairs, but in fact does not manufacture them after B.'s refusal, which is never retracted. A. is entitled to recover damages against B. for his nonacceptance of the chairs, as the condition that A. should be ready and

(g) This principle is as old as the Y. B., 9 Edw. 4, E. T. 4A.

(h) The latter clause was quoted with approval by the C. A., in Gueret v. Audouy (1893), 62 L. J. Q. B. at

p. 638.

See also per

(i) Benj. p. 548. Maule, J., in Sands v. Clarke (1849), 8 C. B. at p. 762, citing Mayne's Case (1596), 5 Co. Rep. 25 a.

willing to deliver them was waived by B. by his implied offer to A. (which A. accepted) to rescind the contract. Cort v. Ambergate Railway Co. (1851), 17 Q. B. 127 (k).

3. A. agrees to sell to B. a third interest in a cargo of tea of a certain description on arrival at C., and to be paid for after delivery. Before the arrival of the ship at C., B. refuses to accept the tea and to be bound by the contract, and does not withdraw the refusal. B. has waived the condition of delivery to be performed by A., and is liable for a non-acceptance of the tea. Ripley v. McClure (1849), 4 Ex. 345.

S. 11 (3).

12. In a contract of sale, unless the circumstances Implied of the contract are such as to show a different as to title, &c. undertaking intention, there is—

(1.) An implied condition on the part of the seller

that in the case of a sale he has a right to
sell the goods, and that in the case of an
agreement to sell he will have a right
to sell the goods at the time when the
property is to pass :

(2.) An implied warranty that the buyer shall
have and enjoy quiet possession of the
goods:

(3.) An implied warranty that the goods shall be free from any charge or incumbrance in favour of any third party, not declared or known to the buyer before or at the time when the contract is made.

The effect of sub-s. (1) is to remove any doubt, if such existed after the decision in Eichholz v. Bannister (1), in relation to the existence of an implied "warranty of title" on the sale of personal chattels. It was well settled that in an executory agreement, the seller impliedly warranted his title in the goods which he promised to sell (m); but, prior to the decision in Eichholz v. Bannister (n), it is undoubtedly true that the opinions of judges (0) and of text-writers (p) gave support to the proposition that on a

(k) See also Gueret v. Audouy (1893), 62 L. J. Q. B. 633.

() (1864), 17 C. B. N. S. 708; 34 L. J. C. P. 105.

(m) Benj. p. 622. (n) Vide supra.

(0) See, in particular, the elaborate opinion of Parke, B., in Morley v. Attenborough (1849), 3 Ex. 500.

(p) See Co. Litt. 102 (a); Noy's Maxims, 42.

S. 12 (1).

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